Dissenting Opinion. Our statute might have provided that supersedeas bonds should contain the obligation to perform and satisfy, not only "the judgment proceedings on which are stayed in case the * be affirmed * said judgment * * * *," but also any judgment of the appellate court for any part of said judgment, or some words to that effect; but the statute does not so provide. And, since our statute contains the provision that the supersedeas bond shall contain the obligation to pay "all damages incurred in consequence of the supersedeas," no good reason is perceived why such bond should contain any further obligation as to payment of any judgment other than the original judgment of the trial court. For if any part of the judgment is affirmed on appeal, the lien thereof on any real estate of the judgment debtor remains undisturbed by the appeal. Shepherd's Adm'r. v. Chapman's Adm'r, 83 Va. 215, 2 S. E. 273. And as to the enforcement of the payment of the part of the judgment affirmed on appeal by execution, if there be a change of condition, such as insolvency of the judgment debtor or decline in financial responsibility pending the appeal, so that any loss may occur in enforcing the judgment finally obtained by reason of the delay resulting from the supersedeas, indemnity against such loss is fully provided for by the clause in the bond or statute last above quoted; and if there is no change in such financial condition, the judgment finally obtained can be as effectually enforced against the principal debtor without as with a bond; and it would be an unnecessary burden and expense to require the appellant to give bond with surety creating the obligation to pay whatever judgment may be finally obtained against the appellant before he can seek relief from error going only to a part of the original judgment, regardless of whether the delay caused by the appeal shall affect or not affect the ability of his creditor to enforce the judgment. Dissenting Opinion. The supersedeas bond statutes of the different States involved in the numerous decisions cited in argument, differ among themselves in various ways, and, so far as quoted in argument or in the authorities cited, they all seem to differ from the Virginia statute in the lack of any provision such as that last above quoted. There are four cases which are relied on by the defendant in error, namely, Hopkins v. Orr, 124 U. S. 510, 8 Sup. Ct. 590, 31 L. Ed. 523; Harding v. Kuessner, 70 Ill. App. 355, affirmed in 172 Ill. 125, 49 N. E. 1001; Butt v. Stinger, 4 Cranch. C. C. 252, Fed. Cas. No. 2246; and Page v. Johnson, 1 D. Chip. (Vt.) 338, to sustain the position that an order of an appellate court upholding a judgment of the court below in part and allowing a remittitur as to the residue thereof, is an affirmance of the judgment. But all four of these decisions are influenced by the peculiar statute law governing the subject in those jurisdictions. In all of them the effect of the statute law was to make the obligation of the appeal or supersedeas bonds cover whatever judgment might be rendered by the appellate court. See also Grover, etc., Co. v. Radcliffe, 137 U. S. 290, 11 Sup. Ct. 92, 34 L. Ed. 670, on the subject of the Hopkins v. Orr case. ་ A great number of cases are cited and relied on by the plaintiff in error to sustain the converse of the position of the defendant in error; but most of these cases are likewise influenced by peculiar statute law in force in those jurisdictions. All of these cases to which I have had access, like those relied on by the defendant in error, involve statutes which differ, it would seem, from the Virginia statute in the lack of the provision aforesaid, as to "all damages incurred in consequence of the supersedeas." Such cases, with notation as to the peculiar statutory or bond obligation features involved, are as follows: Seymour v. Gregory, Fed. Cas. No. 12,686, 10 Bliss 13 (to "prosecute writ of error to effect"); Crane v. Buckley, 203 U. S. 441, 27 Sup. Ct. 56, 51 Dissenting Opinion. L. Ed. 260 (to "prosecute appeal to effect"); Rothgerber v. Wonderly, 66 Ill. 390 (to “duly prosecute the appeal to effect"); Feemster v. Anderson, 6 T. B. Mon. (Ky.) 537 (to pay, "provided he gets cast"); Galloway v. Yates, 10 Minn. 75 (Gil. 53) (to "prosecute appeal to effect and if the judgment be affirmed or any part thereof be affirmed"); Quinn v. Adair, 4 Ala. 315 (to "prosecute such appeal to effect; and in case he be cast therein"); Blair v. Sanborn, 82 Tex. 686, 18 S. W. 159 (to "prosecute the appeal with effect"); Cobb v. Morrison (Ala.), 73 So. 42 ("if the bondsmen shall fail in said appeal"). In the following cases cited and relied on by the plaintiff in error there seems to have been nothing in the local statute law different from that of Virginia, except that it does not appear whether there was any provision as to the bond covering all actual damages incurred in consequence of the supersedeas. In Kibble v. Butler, 27 Miss. 586, the condition of the bond was that the obligors "would pay the judgment if affirmed." The appellate court reversed the judgment of the trial court merely because of its form, and entered a judgment of its own in another form, but "in effect the same judgment as the one reversed." That holding goes even beyond the conclusion reached above in the instant case, and is a convincing illustration of the application of the strictissimi juris rule. In Lehman V. Amsterdam Coffee Co., 151 Wis. 207, 138 N. W. 606, Ann. Cas. 1914 A, 1299, the condition of the bond was that the obligors would pay "if the judgment so appealed from, or any part thereof, be affirmed," and that the payment would be "the amount directed to be paid by said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part. The appellate court reversed the judgment and ordered a new trial, unless the plaintiff elected to take Dissenting Opinion. judgment for $1,000, in which case the trial court was ordered to enter judgment for that amount. This was in substance what was done on the appeal involved in the case before us, the only difference being that this (the appellate) court itself entered such a judgment conditioned upon the election of remittitur being exercised. The appellate court in the case cited said: "No part of the original judgment was left in existence after the judgment of this court upon the former appeal. The fact that another judgment might be rendered in the future by the trial court upon the exercise of a certain option by the plaintiff could not under any theory be construed as any affirmance, even in part. The sureties are only held according to the language of their bond, and that language does not cover this case. They never agreed to pay a judgment rendered in future in the trial court, but only the existing judgment, or some part thereof, in case of affirmance." That holding, too, goes much beyond the conclusions reached above in the instant' case in the application of the strictissimi juris rule. Assuredly, the circumstance cited of the later judgment being ordered by the appellate court to be entered by the trial court, instead of its being entered by the appellate court itself, as in the instant case, does not distinguish the one case from the other. It is alike true in both cases that the later judgment is not the same, or for the same amount, as the judgment named in the terms of the bond, but another judgment, rendered in the future, conditioned to come into existence only in the event of the exercise of a certain option by the plaintiff. And of such a judgment, in the instant case, we must also say, that "it could not under any theory be construed as any affirmance" of the whole judgment of the trial court. And that being true, it is plain that it is not embraced in the terms of the bond in suit. The difference between the first and the second judgments, both in the case cited and in the instant case, is more substantial Dissenting Opinion. than the difference made by the circumstances of the second judgment being entered at a different time by the trial court in the cited case and at a different time by the appellate court in the instant case from the time of the entry of the original judgment. If the strictissimi juris rule excludes the judgment in question in the case cited from the obligation of the surety, a fortiori will such rule exclude the judgment in question in the instant case from the obligation of the surety which is set out in the terms of the bond in suit. Rothgerber v. Wonderly, 66 Ill. 390, contains the same holding in substance as that of the case last above cited. In Heinlen v. Beans, 71 Cal. 295, 12 Pac. 167, the obligation of the bond was to pay "if the judgment be affirmed." The appellate court reversed the judgment of the trial court, but permitted a remittitur, and remanded the cause to the court below with direction to enter judgment accordingly, which was done. The court, in its opinion, said: "Now, if this judgment was affirmed at all it was only affirmed in part, and the undertaking does not impose on the parties the obligation to pay on any such contingency, but only in case the judgment appealed from is affirmed. We construe this to mean affirmed as rendered by the court below. It does not mean affirmed in part." Such holding is directly in point as applied to the instant case. It is true that the court in that case says that such conclusion on its part "is strengthened" by the consideration that there was a provision of statute in that State under which there might be a stay of execution in case of an appeal from a judgment by the giving of a certain bond, which such statute provided should not only covenant to pay the amount of the judgment, but also "the part of the amount as to which judgment or order is affirmed, if affirmed only in part;" whereas the last quoted language was not contained in the appeal bond statute under which the obligation in that suit |